I think there are separate legal issues. The first is what exactly does natural born citizen mean when applied to a president. I have my thoughts and they are much more narrow than others to the extent that I even doubt McCain’s eligibility but I don’t believe there is much on this as it applies to a president.
Second, assuming he is not a natural born citizen what happens? It is this question that I believe is up to the House. I further believe the question is divided into two parts, first is whether he is eligible to be president and second what happens when president is ineligible.
My opinion is that the eligibility question only applies to a president elect and not to a sitting president. At the time of the election, when the House counts the votes it is implicitly approving the eligibility. If the SC got involved on this part they would be extending their power over an issue that is not given them by the constitution. The House approved the vote and therefore Obama is our duly elected president, flaws and all.
This is the only logical conclusion. Lets assume the results if the delusional view were true. This would mean that laws on our books for years could be overturned if it is later proved that a prior president was ineligible, perhaps too young. Would every law be unenforceable? Would every treaty be void? Would a war result be reversed? If it were ruled that Washington was not eligible, how much of our foundational laws do we overturn? The only logical answer would be that once we have elected a president his eligibility is no longer an in question. He could be a six year old golden retriever from India so long as he signs the bills into law and if the House approved the vote we are stuck.
An impeachment would and should occur if it is shown he is not eligible. Again, this is the House’s jurisdiction. In the current environment this is a waste of time. Again, if the SC began to veto laws because of a president’s lack of authority we would have a SC that would be claiming authority of a power reserved solely to the House.
So, back to my original statement. This question could have an affect on the next election but it would have zero effect on anything that has transpired.
At the time of the election, when the House counts the votes it is implicitly approving the eligibility.
This argument can't hold under the Constitution. IF the person elected president were, in fact, ineligible *under the Constitutional standard* (which no one seems to know what that is, exactly), nothing the House -- or anyone else -- did or could do would make him eligible. This is not a procedural defect that can somehow be overcome. Like if it were later determined that the president was only 22 years old when he was elected, there's no way he could be deemed to have met the age requirement.
If the SC got involved on this part they would be extending their power over an issue that is not given them by the constitution.
I don't see how this holds water either. The eligibility standard is set out in the Constitution. The SCOTUS always has authority to determine if an act of government violates the Constitution. All the usual rules, of course, would apply -- there would have to be a case or controversy, jurisdictional requirements must be met, and the party bringing the case must have standing to do so. The latter seems to be one of the major procedural snags. Who has standing? I'm not familiar with how whatever complaints have been filed were disposed of by the Court.
Just wanted to say I also brought this up in a separate post. While there is caselaw that uses "natural-born citizen" and "citizenship based on place of birth" interchangeably,
(1) that can cut both ways (it could mean the SCOTUS thought they were the same thing or it could mean the SCOTUS wasn't carefully distinguishing the two because any distinction was not material to that particular case), and
(2) there is still the argument that in making its NBC rulings, the SCOTUS never explicitly considered NBC as applied to a president.
I don't believe this would EVER happen, even if by some unbelievable convergence of events the SCOTUS found the POTUS ineligible to serve.
First, I don't think the SCOTUS would ever declare that a particular president was ineligible. That is a finding of fact and I think they would avoid that so far as possible. If it came to that, I think they would lay out a holding that, if/once applied by Congress, would make clear that the person was ineligible. It would be up to Congress to apply the Supreme Court's ruling, make the finding of ineligibility, and then take action to remove the ineligible person.
Secondly, even if they did declare a sitting president ineligible, at most they would likely give dicta as to how that impacted his actions while in office. They would not start vetoing laws or overturning treaties! At the minimum, Congress would first have the chance to more or less get everything done by the ineligible dude blanket-ratified by the new dude.
I am confident even if it came to this crossroads, the SCOTUS would be as deferential as possible to the legislative branch.